March 26, 2021

For a number of grim reasons there has been a lot of discussion of policing and cops in the UK recently.  In this post I want to briefly write up one set of arguments for why violent, abusive policing is more usefully seen as a systemic product of policing as an institution, than as an difficult-to-understand anomaly.

I’m going to make a specific case at a pretty high level of abstraction, and there are therefore obviously lots of important issues that this post won’t touch on.  Moreover, in keeping with the general current project of this blog, I’m going to be making a case that I take to be grounded in basic liberal principles.  In this respect, the argument of the post departs from what I take to be one prominent and important strand in contemporary (and historical) radicalism: namely, the idea that the political solution to the horrors of the criminal justice system is the abolition of policing and prisons as such and as a whole.

From this radical perspective, a world without coercive institutions that bear even a ‘family resemblance’ to cops, courts, and prisons is both possible and desirable.  Perhaps controversially (at least among radicals) I don’t agree with this perspective.  In large part that’s because I have a relatively high degree of pessimism about ‘human nature’.  (‘Human nature’, as I am using it here, expresses a stochastic rather than an essentialising category.  That is to say: I’m not making a claim about an invariant individual nature, but about behaviours that will predictably be manifested somewhere across a large enough human population.)  Specifically: it doesn’t seem remotely plausible to me that we are ever going to be able to achieve a society with such an absence of monstrous behaviour that we don’t need some kind of institutionalised process of coercive constraint of some individuals’ freedoms in the interest of broader public safety.  That institutional structure may – and should – look radically different from the institutions of our current criminal justice system, and so one can make a case that the current system can be ‘abolished’, while an alternative, vastly more humane, system is instituted – but I think some system of coercive enforcement of some community norms is a going to be a feature of any complex social-political organisation one can realistically aspire to establish.

So – one of my premises here is the ‘pessimistic’ one that there is enough ‘darkness in human nature’ that we are never going to be able to achieve the wholesale abolition of coercive governance institutions.  This very same pessimism about ‘human nature’, however, should also lead us, I believe – more or less a priori, though also backed by a superabundance of empirical evidence – to cast an extremely sceptical eye on any such coercive governance institutions that exist.  Fundamentally, the sceptical logic here is the same: if people have the power to act badly, some will do so.  Moreover, the more power people have, and the fewer constraints people have on the ability to exercise that power, the more abusive that exercise of power is likely to be.

This is an argument that should be extremely familiar from – perhaps ironically – conservative discourse.  It is a mainstay of the conservative critique of state power that power corrupts, that abuses of power are inevitable, and that once institutions are established that wield such power, those institutions will not only be loath to relinquish their power, but will seek to expand it.

This critique of state power is correct.  (Though it also, of course, applies to private power.)  So it is a striking feature of contemporary conservatism that the most important instantiation of the state’s coercive power over its domestic populace – the criminal justice system – is frequently exempted from the sceptical conservative perspective on the state.  If domestic state power – which consists, in the classic Weberian formulation, in a “monopoly on the legitimate use of force” – is likely to be abused anywhere, it is in those institutions where that force is directly exercised: in policing and in prisons.  And yet many conservatives who regard themselves as opponents of the state abuse of power are admirers and defenders of these institutions, determined to protect them against attacks from bleeding heart liberals and leftists.

I say this not so as to accuse conservatives of hypocrisy – this dual attitude towards state power is less a hypocrisy than it is an indication that ‘scepticism of the state’ is an inadequate summary of the relevant conservative ideology.  My point, rather, is that one does not need particularly radical political commitments in order to have the basis for a far-reaching critique of the criminal justice system.  Indeed, the idea that police forces tend towards abuse of power – towards inexcusable violence and oppression – is a conclusion that ought to follow naturally from widely held – and correct – beliefs about how institutional power operates in general.  The very many well-documented cases of police actually being abusive, violent, corrupt, etc. etc. should serve simply to confirm an analysis that follows naturally from our understanding of how the social and political world typically works.

Now, as I’ve said many times before on this blog, ‘liberalism’ is a complicated political phenomenon that involves many sometimes contradictory elements.  Nevertheless, one of the key elements of political liberalism is this idea that possession of power will tend to lead to the abuse of power.  And liberalism’s ‘answer’ to this problem – an answer that I think we should take seriously – is checks and balances on power.  The liberal idea, here, is that we cannot in practice construct a political order that does not involve coercive power, and yet, at the same time, such coercive power will tend to be abused.  We should, therefore, construct our governance institutions in such a way that there is no one single concentration of power, but rather multiple centres of power, each of which is constructed in such a way that it can serve as a ‘check’ on others.  The problem liberalism confronts is that “the guards cannot guard themselves”: that, fundamentally, nobody can be fully trusted to consistently act responsibly and humanely if given the power to do otherwise.  The liberal solution to this problem is that different subcomponents of our political institutions can keep other subcomponents in check – that oversight, accountability, and sanctions for abuse of power must be instituted at every level of our political institutions.  Democracy is one such form of oversight and accountability, but there are others.

Of course, as I’ve also said many times on this blog, these (to my mind) positive elements of political liberalism are mingled with many negative elements.  The egalitarian commitments of classical and contemporary liberalism are more often than not accompanied by additional, tempering or overriding commitments – such as those of “patriarchal liberalism” or “racial liberalism” – that apply liberal egalitarian ideals to only one small component of the body politic, while enacting oppression and domination elsewhere – also in the name of liberalism.  Moreover, oversight and accountability are resented by those with power, at all levels of every institution.  Checks and balances are understood and presented by those subject to them not as essential constraints on abuse of power, but as absurd, uncomprehending, inefficient, carping obstacles to getting anything done at all.  In our current political discourse, the enemies of ‘effective policing’ are such villains as “lefty defence lawyers”, “human rights law”, “government bureaucrats”, “bleeding heart liberals”, “woke scolds”, and so on and so forth.  Dispiritingly, this discourse – the illiberal or antiliberal discourse that seeks to remove all constraints on the abuse of power by agents of the state – is very effective in bullying politicians into compliance; assuming, of course, that politicians do not already wholeheartedly endorse a pro-cop line.  The essential project of instituting significant and effective constraints on abusive policing is regarded as anathema by most of the UK ruling class, of whichever political party or factional alignment.  To align oneself seriously against police power is to align oneself against a vast propaganda apparatus and the bulk of public opinion.

Nevertheless, we should, of course, do so.  And there is some reason to believe that doing so is not a completely hopeless proposition.  One of the more encouraging developments of recent years has been the remarkable effectiveness of the Black Lives Matter protests in shifting large segments of public opinion on policing.  That shift is not stable – but it has been (to me) surprising and cheering to see even many conservatives react with horror to the police abuses and injustices brought to the centre of public attention by the BLM movement.  We shouldn’t see public opinion – or our political environment – as immovable, or beyond the reach of persuasion on the pressing need to curtail police powers and police impunity.

Nevertheless, awareness of the horrors of policing is typically only politically consequential if those horrors are understood as systemic features of policing as an institution.  To the extent that we see instances of cop violence as anomalies, we will not see the need for systemic change.  What I’ve tried to do in this post is simply make the case that – on basic, widely held liberal or even conservative premises – we would expect to see widespread cop abuse of power.  Cop abuse of power should be a default assumption, not a surprising fact that needs to be demonstrated with superabundant evidence time and time again, for each fresh instance.  And the reason for this is straightforward:  people with power will often abuse it, unless there are very strong and robust institutional constraints that prevent such abuse.

Of course, the systemic nature of cop violence, corruption, etc. has many elements – and the abstract discussion in this post does not begin to touch on many of the most important ones.  Nevertheless, more or less on ‘first principles’, there is every reason to believe that cops will continue to act horrifically as long as ‘we’ (in the sense of our political institutions) let them.  If there are no severe, widespread, institutionalised sanctions for cop abuse of power – if, among other things, cops are not personally and institutionally afraid of the consequences of their violent actions – our ‘criminal justice system’ will – always and inevitably – be a system for the production of criminality: that is, a system for facilitating and defending criminal actions perpetrated by those supposedly tasked with enforcing ‘justice’.

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